TUC - Risks 811 - 5 August 2017

Issue date

02 Aug 2017

Number 811 - 5 August 2017

Risks is the TUC's weekly online bulletin for safety reps and others. Sign up to receive this bulletin every week. Past issues are available. Disclaimer and Privacy Editor: Rory O'Neill of Hazards magazine. Comments to the TUC at healthandsafety@tuc.org.uk.

Following last week’s massive win (Risks 810) in the Supreme Court by the trade union Unison which made tribunal fees unlawful, the union has chalked up a second win. The Court of Appeal has now agreed that businesses should consult unions before making changes to contracts that will affect their members. The case was specifically about a failure to consult on redundancies but the court ruled that the union could also bring a claim if the terms and conditions of contracts or the rights of their members had been affected more generally. This will make it much harder to ignore unions when changes were being made in the workplace. Prior to last Friday’s Court of Appeal ruling, employers only had to consult with unions where the law explicitly said they must, for example, in TUPE or redundancy negotiations. Although there is a requirement on an employer to consult on health and safety issues, many did not consult on wider issues that affect the health of workers such as shift patterns or working hours. The decision is likely to mean that employers will now be legally required to do so. UNISON general secretary Dave Prentis said: “This is the second major legal victory in a week for working people. It means that employees in any workplace where there’s a union will now benefit from greater protection at work. The message to bosses is they will have to treat their staff more fairly over pay and working conditions. If they fail to consult unions then they will be acting unlawfully and could be taken to court.”

Trade union Unite has said employment rights need a major overhaul after new figures demonstrated bogus self-employment in construction is out of control. A Freedom of Information request by Unite has revealed that, in the past year, at least 1,076,000 construction workers were paid via the Construction Industry Scheme (CIS), an 8% increase over twelve months. In total 47 per cent of the entire construction workforce is now paid via CIS the stand-alone tax system for construction workers who their employer classifies as (usually bogusly) self-employed. In 2014 the government introduced measures that barred construction workers operating via engagers (employment agencies and payroll companies) from being self-employed, however the figures revealed by Unite show that this has failed and instead has led to a huge increase in workers being paid via umbrella companies. This means the worker having to pay both employers’ and employees’ national insurance contributions as well as a plethora of other deductions from their wages. These workers have all the employment characteristics of an employee but are denied even the most basic employment rights such as holiday and sick pay and can be instantly dismissed without warning. However the employers win by not having to pay employers’ national insurance contributions of 13.8 per cent or employee benefits such as holiday pay. Gail Cartmail, assistant general secretary, of Unite said: “These figures demonstrate that bogus self-employment in construction is out of control. Employers are simply ignoring the rules in order to line their pockets and deny workers their rights.” She added “The only way that workers will be treated fairly and decently is by introducing clear rules which ensure that workers are either genuinely self-employed or paid by a standard PAYE method. Without such a reform productivity in construction will remain low, accidents and ill health will be high and the industry will fail to train sufficient numbers of apprentices.”

The Fire Brigades Union have published their submission to the Inquiry into the Grenfell fire which has just finished consulting on its terms of reference. The Union states that the public inquiry into the disaster must look at the failures in the fire safety regime that led to the worst blaze in the U.K. since World War Two. They have stated that in addition to the reasons behind the fire happening and spreading so quickly the inquiry must consider the capacity of fire and rescue services nationally to respond to fires of this scale along with any matters that have impacted on the fire safety regime over recent years and have created the environment where the aforementioned defects, acts and omissions could arise. The submission also states that the FBU believes that the inquiry must examine the wider, long term regulatory regime that contributed to the fire. The submission, from FBU General secretary Matt Wrack claims “There has been a long-running deregulation agenda, under the euphemisms of “better regulation” or “cutting red tape” as well as a “soft touch” enforcement agenda that has emphasised the impact on business rather than compliance with safety standards. The inquiry should examine the impact of this on the robust application of fire safety provision.”

The TUC has welcomed the decision to set up an independent review of building regulations and fire safety following the tragic fire at Grenfell Tower. The review is to be led by Dame Judith Hackitt, who is currently the chair of the employers body the EEF, but who was previously the chair of the HSE. According to the Government, the review will look at current building regulations and fire safety with a particular focus on high rise residential buildings. In particular, it will examine the regulatory system around the design, construction and on-going management of buildings in relation to fire safety as well as related compliance and enforcement issues. The TUC had previously written to the Secretary of State calling for such as inquiry and had been critical of the current regulations. The Fire Brigades Union had also criticised the current regulation and guidance, as well as the government’s refusal to update them. Speaking after the announcement, TUC head of health and safety, Hugh Robertson, said “We welcome this inquiry and the fact that it is likely to report early next year. It was clear even before the Grenfell fire that the current regulations and guidance are not fit for purpose and that the Government had delayed implementing recommended improvements. We need simple clear regulations that are freely available. However we have also called for urgent advice to be issued to employers about what they need to do to ensure that their premises are safe following this disaster, yet that has still not been addressed.”

An announcement by the police that they were investigating possible corporate manslaughter changes in the aftermath of the Grenfell Tower tragedy, which led to the death of an estimated 80 people has been generally welcomed by unions. The Metropolitan Police have indicated that they are looking at corporate manslaughter charges in relation to the actions of the Royal Borough of Kensington and Chelsea, who owned the block and the Chelsea Tenant Management Organisation (TMO), who managed it. Many of those who died in the fire, or who lived in the block, were union members and many unions have supported those affected in a number of ways. Howard Beckett, the assistant general secretary for legal services for Unite, which is representing about 30 families affected by the tragedy, said that “Clearly people have to be held accountable if their decisions have caused deaths and, more so, if those decisions were made with the knowledge of the very real risks to lives.” He added “We welcome the continued police investigation that they have ‘reasonable grounds’ to suspect that both organisations may have committed an offence under the Corporate Manslaughter and Corporate Homicide Act 2007.” Meanwhile, Hugh Robertson, the head of health and safety at the TUC said “we welcome this move but we are aware that corporate manslaughter charges can only lead to a fine against the organisation which, in these cases, are both public bodies. It is important that the investigation also looks at the individuals who made the decisions and who may well have benefitted. That includes the directors of the companies that supplied and fitted the cladding and the councillors who oversaw the process.”

Rail union RMT has written to train operators where there are issues over the threat to the role of the guard, and to passenger safety and access to services, following a meeting with Transport Secretary Chris Grayling. The union has been in dispute with a number of companies where they are trying to remove guards leading to risks for the travelling public, in particular the long-running Southern dispute, but also Northern and Merseyrail, with a dispute also declared on Greater Anglia. The union has previously published evidence of the risk that driver-only operated (DOO) trains pose to the public. Following a meeting with the Secretary of State for Transport. RMT general secretary Mick Cash said “Regarding the Driver Only Operation disputes we had a full and frank discussion on our concerns and the Secretary of State has now had an opportunity to get a clear understanding of RMT's position on Southern Rail and the broader issue of how the extension of DOO impacts nationally on other rail franchises.” He added” Regarding DOO on other companies the Secretary of State claimed that he was not sitting on companies telling them what to do and we are therefore writing to all of the relevant companies seeking urgent discussions.”

Unite, the UK’s largest construction union, is calling on major contractors to urgently learn the lessons from the death of Rene Tkacik on the Crossrail project. This followed fines of more than £1m which were imposed on a consortium of three contractors working on the Crossrail site following three separate incidents on the project, including the death of a worker. The three workers were operating under Bam Ferrovial Kier (BFK). Southwark Crown Court heard Renè Tkáčik died after being crushed by falling wet concrete on 7 March 2014. Two other men were injured following separate incidents within six days of one another, on 16 and 22 January 2015. According to the HSE, who took the prosecution, Renè Tkáčik, 43 from Slovakia, was working on a team enlarging the tunnel by removing rings of the existing pilot tunnel and spraying walls with liquid concrete. During this operation, a section of the roof collapsed, fatally crushing Mr Tkáčik. On 16 January 2015 Terence ‘Ian’ Hughes was collecting some equipment from inside one of the tunnels when he was struck by a reversing excavator. He suffered severe fractures to his right leg and crush injuries to his left knee and shin. Six days later worker Alex Vizitiu, who was part of a team tasked with spraying liquid concrete lining, was assisting with the cleaning of the pipes that supply the concrete. Due to a lack of communication one of the lines was disconnected and he was hit by pressurised water and concrete debris. He suffered head and hip injuries as well as a broken finger and was hospitalised for six days. Unite national officer for construction Jerry Swain, said: “This is firstly a human tragedy where a husband went to work and didn’t return home again. The tragedy is even greater as we know his death was wholly avoidable. There are clear and straightforward ways of creating a safe way of working when applying concrete to the roof of a tunnel which would have ensured that no one could have inadvertently entered the danger area. Following the tragedy the companies responsible should have swiftly accepted their guilt rather than prolong the torment faced by the victim’s family. The industry needs to learn the lessons from this tragedy, especially on major infrastructure projects. These projects often include potentially dangerous work but if proper procedures are put in place and workers are fully engaged in safe ways of working, deaths and injuries can be avoided.”

The Institution of Occupational Safety and Health (IOSH) which is the professional health and safety officers body has called on the government to reduce worker exposure to cancer-causing diesel particulates. Responding to the UK’s newly published Air Quality Plan, IOSH is encouraging the government to support its No Time to Lose campaign, which aims to tackle the burden of occupational cancer and help to offer solutions to businesses looking to reduce the impact of diesel particulates. According to IOSH the Government’s plan fails to address the cancer-causing elements of diesel exhaust emissions. In Britain, it is estimated that more than 650 people die every year of lung or bladder cancer linked to exposure to diesel exhaust fumes at work, while around 800 new cases of cancer caused by diesel-exhaust-fumes exposure are registered each year. Bus, car and lorry maintenance engineers, professional bus drivers and lorry drivers, fork lift truck drivers and other warehouse workers, tractor drivers, miners and construction workers are just some examples of occupations that are exposed to diesel exhaust in the course of their work. Unite the Union have produced a resource page on the dangers of diesel exhaust, which includes a link to their own guide for safety representatives on tackling the issue. Since June 2012, Diesel exhaust emissions have been classified by the International Agency for Research into Cancer as a Group 1 Carcinogen, which means that they cause cancer in humans.

A report by Cardiff University into the health of seafarers between 2011 and 2016 has found that sleep quality has reduced in the period 2011‐2016. The research showed that fatigue scores for seafarers have risen over this period and there was also a deterioration in some aspects of seafarers’ mental health. The responses to a questionnaire suggested that there has been an increase in psychiatric disorders amongst serving seafarers and more seafarers felt that their health was less robust than that enjoyed by other people around them. The researchers made a number of recommendations, including that ship operators ensure that effective means of screening out daylight are provided in all seafarer cabins, minimise exposure to environmental factors which disturb sleep, even when this requires that they prioritise crew welfare over commercial concerns and place sufficient numbers of seafarers on board in order to produce a reduction factors such as long working hours. The report also called on ship operators pay more attention to the protection of seafarers’ mental health by providing better access to facilities and amenities on board to help seafarers to relax. The rise in fatigue was previously highlighted in an international report earlier this year. Trade union Nautilus International has been running a strenuous campaign on the issue of fatigue at sea.

The contractors who built a biogas plant in Cornwall have been ordered to pay almost £300,000 in fines and cost over the "avoidable" death of a worker who was expecting his second child, yet because two of the three companies found guilty have gone into receivership only a small proportion of the fines and costs will be paid. Father-of-two Ionel Soci died after he was crushed by a heavy piece of steel being used to direct the flow of concrete while working for a sub-contractor on the project at Penare Farm, Higher Fraddon, in June 2014. Mr Soci had worked as a builder in Britain and Ireland for many years but had returned to his family in Romania. He decided to go back to Britain shortly before his death so he could support his wife Monica, 28, son Alexander, 7, and a child who was unborn at the time but is now aged two. He died as he dismantled steel shuttering which had been used for pouring concrete. He started to remove bolts on his own rather than waiting for an excavator, which should have held up the heavy steel structure as it was removed. FLI Energy, Priority Construction, and PJL Construction (Scotland), all admitted offences under the Health and Safety Act of failing to ensure the safety of an employee when they appeared at Exeter Crown Court. FLI was fined £160,000 with £19,492.12 costs, Priority £36,000 with £19,492.12 costs and PJL £36,000 with £17,500 costs. Both FLI and PJL have gone into liquidation since 2014. Judge Robert Linford said "Mr Soci's death was a result, in part, of failings on the part of the defendants. His death could and should have been avoided if they had taken proper care of those who were conducting undertakings on their behalf. There was a failure to properly plan the works, a failure to manage them, and particularly worryingly there seems to have been a failure to procure a suitable risk assessment and method statement.”

Three companies have been fined a total of more than £1m after workers were exposed to asbestos is a school that was still occupied by schoolchildren. A former trading division of contractor Balfour Beatty, its client and its demolition contractor have together been fined £1.27m after exposing workers to asbestos during a project to create new premises for an expanding primary school. The exposure took place in July 2012 at the site of the former Warwick School in Walthamstow, east London, which was being converted for St Mary’s Primary School in a £3m project. The school was partially occupied at the time, with pupils later having to be bussed to another site during remedial works. Balfour Beatty was fined the highest amount, at £500,000, while its client for the project, NPS London, was fined £370,000. The demolition contractor on the project was fined £400,000, plus another £175,000 in costs. Southwark Crown Court heard that on 24 July 2012 a worker removed part of a suspended ceiling in one of the ground floor refurbished rooms at St Mary’s school and identified suspect asbestos containing materials. Asbestos fibres were subsequently found in numerous areas in the school. An HSE investigation found that although an asbestos survey was completed, there were multiple caveats and disclaimers which were not appropriately checked. Speaking after the hearing HSE inspector Sarah Robinson said: “The principal contractor and contractors on site did not review the survey report in detail, and did not take into consideration the multitude of caveats. Therefore the work undertaken did not adopt the high standards of control expected for working where there was the potential to expose workers to asbestos.” Two years ago the local authority was fined £66,000 for failing to manage asbestos

A report by the Royal College of Surgeons of Scotland has said that fatigue is putting patients lives at risk. The college surveyed more than 500 consultants and trainees across the UK and found fatigue and high stress levels are impacting on morale and patient safety. One of the recommendations in the report was a call for the return of the hospital mess to give under-stress doctors a break and help improve patient safety. The report said it is essential doctors have a place to rest but facilities are “sadly lacking” in most UK hospitals. “Many would regard such facilities as a fundamental requirement. Those who do not work inside the profession would be surprised that these basic amenities do not exist.” The report also said that it is an indictment of our NHS hospitals that facilities for those persons working on the front line, especially out of hours, remain so poor. The researchers commented “This study has shown that there remains inadequate access to hot food and appropriate facilities where staff can relax during their breaks (if they are fortunate enough to get them) without meeting patients or their relatives.” Many hospital workers, including nurses, have complained that cut backs have meant that separate staff facilities have been withdrawn and there is now nowhere that they can eat or have a break away from patients, meaning that they are often approached by people they are caring for. An absence of separate staff facilities also prevents them being able to discuss work issues with colleagues.

A food manufacturing company has been fined after a worker fell six metres from the back of a fork lift truck. Fishgate Limited was found guilty of breaching Section 2(1) of the Health & Safety at Work Act 1974 and has been fined £100,000 and ordered to pay £19,032.63 in costs. Lincoln Magistrates’ Court heard how an employee of the company was instructed to paint guttering and drainpipes on the outside of a factory in Brookenby, Lincolnshire. The employee was raised up by a forklift driver in an unsecured tote box to paint when he fell to the ground from a height of around six metres resulting in a dislocated arm, cracked pelvis, broken foot and shattered leg. An investigation by the HSE found the work was not properly planned nor was it adequately supervised. The injured worker had not received any training or advice on how to correctly carry out the task. Speaking after the trial, HSE inspector Samantha Farrar said: “This work activity should have been properly planned. The injured worker should have been given the correct equipment as well as instruction as to how to carry out the work. The company also failed to adequately supervise the activity which could have prevented the incident.”

A row has broken out over a claim that construction giant Amey were employed by Sheffield council despite not disclosing a conviction for corporate manslaughter. It came during legal action which is being taken over continued protests about thousands of trees being chopped down as part of the council’s Streets Ahead contract with Amey. During cross examination, John Cooper, QC, the barrister representing protesters, asked a representative of the council if he was aware that Amey had been convicted of corporate manslaughter in 2008 at the time the contract was signed in 2012. The council have said that they were not, however it has since transpired that the case that was being referred to did not involve Amey at all, but was the first ever corporate manslaughter conviction in England against Cotswold Geotechnical Holdings – a firm with no connection with Amey. Nevertheless companies that are owned by Amey have a long history of convictions for health and safety offences, including one in 2008 following the death of track worker Jason Wilkinson and another in 2011 following the death of an electrician in Merseyside. Amey companies have also been convicted of health and safety offences that occurred in 2006, 2012 and 2014. The most recent conviction was a £600,000 fine against Amey LG ltd in 2015. Additionally the HSE database of prosecutions reveals 3 improvement notices and 4 prohibition notices have been issued against Amey companies since 2012. Amey Construction was also named as one of the clients of the Consulting Association, who were responsible for blacklisting thousands of union workers in the construction industry.

The first reports of the 2017 Hazards Conference, held in Keele between the 28th and 30th July are now available online. 350 union safety representatives and activists attended. Copies of presentations will also be available on the Hazard Campaign website shortly.

A new report on the history of the collusion between chemical companies and the regulators in the USA over the past hundred years has been published online. Called “The poison papers”, the report shows that both industry and regulators understood the extraordinary toxicity of many chemical products and worked together to conceal this information from the public. There are over 20,000 documents, many of them available for the first time and they show a level of collusion and cover-up that mirrors many of the scandals that have been revealed about the tobacco and drugs industries in recent years.

Following an earlier decision to delay proposed new workplace standards on beryllium and silica the US regulator OSHA has thrown out four proposed regulations and kicked three other initiatives into the long grass. The withdrawn rules include provisions regarding combustible dust exposure, construction noise, vehicles driving in reverse at factories and construction sites and chemical exposure standards. Other OSHA regulations governing emergency response and preparedness, infectious diseases in health care and a rule that would make a series of fixes to the existing cranes and derricks in construction rule have been moved to the “long-term actions” list, signalling that the Trump administration has no intention to move them forward. The decision follows the appointment of a new Secretary of Labor Andrew Puzder, who is on record saying workers are “overprotected” (Risks 782). Peg Seminario of the AFL-CIO union federation slammed the cuts and said that the White House "is abandoning protecting workers from health and safety hazards." She said “There’s no surprises here. They are implementing what they said they would do, which is to move aggressively on deregulation. So for anybody who thought that President Trump didn’t mean what he said, this is one area where he is fully keeping his campaign promises.” “What you see is, basically, that the Trump administration is abandoning protecting workers from health and safety hazards. They’re turning their backs on the future.” Since the Trump administration took office there has been a huge rolling back on regulatory protection with 860 proposed rules being delayed or withdrawn in the first five months.

The Pakistan Shipbreaking Workers Union Gadani (SWUG) has called on the ship-breakers and the Government to ensure proper occupational safety and health at the yards. The shipbreakers and the Government had previously pledged to ensure labour rights, and health and safety protection for the workers at the Gadani shipbreaking yards after 26 people were killed and dozens others were wounded when a decommissioned oil tanker caught fire during dismantling on November 1 last year (Risks 775). According to the union there has been no change since then. SWUG president Bashir Ahmed Mehmoodani remarked that it was "Highly deplorable that the situation is nearly the same as it was. The ship-breakers and the concerned government departments seem less bothered about the lives of the workers," He claimed that the ship owners avoided to negotiate with true representatives of workers but promotes hand-picked elements as union leaders who actually are contactors. The SWUG president said that after the November 1 tragedy the workers were pledged that new rights would be given and their health and safety would be ensured. "Nothing has been done but a mere show of health and safety equipment installation at a plot." Since the oil tanker incident six more workers had lost their lives in different incidents at Gadani this year and these casualties were still happening due to the lack of health and safety facilities.

A study of American football players' brains has found that 99% of professional National Football League (NFL) athletes tested had a disease associated with head injuries. 202 deceased players were studied, 111 of them from the NFL. All but one former National Football League player were found to have chronic traumatic encephalopathy (CTE) which is a degenerative disease found in people who have suffered repeated blows to the head. It is found in professional athletes in American football, rugby, ice hockey, boxing, wrestling, rodeo riding and other contact sports. It causes a build-up of so-called tau proteins which can disable neuro-pathways and cause memory loss, impaired judgment, confusion and a variety of other mental health issues. In 2015, a federal judge approved a class-action lawsuit brought against the NFL by thousands of players, who had alleged they had suffered brain damage as a result of concussions. The NFL in 2016 acknowledged for the first time that there is a connection between CTE and football.

A Korean court has upheld a lower-court declaration that a former Samsung employee’s multiple sclerosis was occupationally caused (Risks 788). It ordered that workers compensation benefits be paid to to Kim Mi-seon, a 37 year-old, former LCD assembler of Samsung Electronics Co., Ltd. who fell victim to multiple sclerosis. It was the first appeals victory for electronics workers suffering multiple sclerosis, the disease so rare that it affects only 3.5 in every 100,000 Koreans. The lower court concluded that Kim’s multiple sclerosis was work-related because three of the factors thought to cause the disease applied to Kim: inadequate exposure to sunlight, exposure to organic solvents and heavy metals, and working shifts. “Considering that Kim acquired the disease earlier than the average age of incidence (38.3 years) and that four people have come down with the disease on the job at Samsung Electronics, the work environment probably triggered the disease or at least caused it to develop faster than normal,” the court said. On exposure to organic solvents, the court also quoted the results of a 2013 assessment of health and safety at the Giheung plant by the Korea Occupational Safety and Health Agency (KOSHA), which found that the plant did not have any equipment to blow harmful gases outside the building and that not enough was being done to prevent workers from being exposed to high concentrations of harmful materials in a short period of time. “Considering that Samsung Electronics did not submit the documents that were necessary for assessing its system for managing the exposure to harmful materials on the grounds that this was a business secret, there seem to have been more problems than the ones that were identified,” the court said. Since Oct. 7, 2015, The campaign group SHARPS and its supporters have been staging a sit-in at Samsung global exhibition space in south Seoul, calling for the world’s largest technology company to compensate all victims of occupational disease transparently and sufficiently and make a sincere and full apology.